704.27 Annotation
This section requires a minimum award of double rent where greater damages have not been proved. Vincenti v. Stewart, 107 W (2d) 651, 321 NW (2d) 340 (Ct. App. 1982).
704.27 Annotation
"Rental value" includes only those obligations tenant is required to pay during holdover period regardless of whether or not tenant uses premises. Univest Corp. v. General Split Corp. 148 W (2d) 29, 435 NW (2d) 234 (1989).
704.29
704.29
Recovery of rent and damages by landlord; mitigation. 704.29(1)(1)
Scope of section. If a tenant unjustifiably removes from the premises prior to the effective date for termination of the tenant's tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord can recover rent and damages except amounts which the landlord could mitigate in accordance with this section, unless the landlord has expressly agreed to accept a surrender of the premises and end the tenant's liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant, or an assignee of either.
704.29(2)
(2) Measure of recovery. In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to rerent the premises. Reasonable efforts mean those steps which the landlord would have taken to rent the premises if they had been vacated in due course, provided that such steps are in accordance with local rental practice for similar properties. In the absence of proof that greater net rent is obtainable by reasonable efforts to rerent the premises, the tenant is credited with rent actually received under a rerental agreement minus expenses incurred as a reasonable incident of acts under
sub. (4), including a fair proportion of any cost of remodeling or other capital improvements. In any case the landlord can recover, in addition to rent and other elements of damage, all reasonable expenses of listing and advertising incurred in rerenting and attempting to rerent (except as taken into account in computing the net rent under the preceding sentence). If the landlord has used the premises as part of reasonable efforts to rerent, under
sub. (4) (c), the tenant is credited with the reasonable value of the use of the premises, which is presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it is reasonable for the landlord to rent the other premises for the landlord's own account in preference to those vacated by the defaulting tenant.
704.29(3)
(3) Burden of proof. The landlord must allege and prove that the landlord has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlord's refusal of any offer to rent the premises or a part thereof was not reasonable, that any terms and conditions upon which the landlord has in fact rerented were not reasonable, and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with
sub. (4) (c); the tenant also has the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.
704.29(4)
(4) Acts privileged in mitigation of rent or damages. The following acts by the landlord do not defeat the landlord's right to recover rent and damages and do not constitute an acceptance of surrender of the premises:
704.29(4)(a)
(a) Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;
704.29(4)(b)
(b) Rerenting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;
704.29(4)(c)
(c) Use of the premises by the landlord until such time as rerenting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that the landlord will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period;
704.29(4)(d)
(d) Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.
704.29 History
History: 1993 a. 486.
704.29 Annotation
Sale of property constituted acceptance of surrender of premises and termination of lease. First Wis. Trust Co. v. L. Wiemann Co. 93 W (2d) 258, 286 NW (2d) 360 (1980).
704.29 Annotation
Court's retention of jurisdiction to determine damages for rents not yet due is permitted. Mitigation expenses which may be recovered are limited to necessary expenses incurred and does not include compensation for time spent in mitigating damages. Kersten v. H.C. Prange Co. 186 W(2d) 49, 520 NW(2d) 99 (Ct. App. 1994).
704.29 Annotation
Landlord has obligation to rerent when tenant breaches lease; specific performance is not proper remedy. Chi-Mil. Corp. v. W. T. Grant Co. 422 F Supp. 46.
704.31
704.31
Remedy on default in long terms; improvements. 704.31(1)(1) If there is a default in the conditions in any lease or a breach of the covenants thereof and such lease provides for a term of 30 years or more and requires the tenant to erect or construct improvements or buildings upon the land demised at the tenant's own cost and exceeding in value the sum of $50,000, and such improvements have been made and the landlord desires to terminate the lease and recover possession of the property described therein freed from all liens, claims or demands of such lessee, the landlord may, in case of any breach or default, commence an action against the tenant and all persons claiming under the tenant to recover the possession of the premises leased and proceed in all respects as if the action was brought under the statute to foreclose a mortgage upon real estate, except that no sale of the premises shall be ordered.
704.31(2)
(2) The judgment shall determine the breach or default complained of, fix the amount due the landlord at such time, and state the several amounts to become due within one year from the entry thereof, and provide that unless the amount adjudged to be due from the tenant, with interest thereon as provided in the lease or by law, shall be paid to the landlord within one year from the entry thereof and the tenant shall, within such period, fully comply with the judgment requiring the tenant to make good any default in the conditions of the lease, that the tenant and those claiming under the tenant shall be forever barred and foreclosed of any title or interest in the premises described in the lease and that in default of payment thereof within one year from the entry of the judgment the tenant shall be personally liable for the amount thereof. During the one-year period ensuing the date of the entry of the judgment the possession of the demised premises shall remain in the tenant and the tenant shall receive the rents, issues and profits thereof; but if the tenant fails to comply with the terms of the judgment and the same is not fully satisfied, and refuses to surrender the possession of the demised premises at the expiration of said year, the landlord shall be entitled to a writ of assistance or execution to be issued and executed as provided by law.
704.31(3)
(3) This section does not apply to a lease to which a local professional baseball park district created under
subch. III of ch. 229 is a party.
704.31 History
History: 1993 a. 486;
1995 a. 56.
704.40
704.40
Remedies available when tenancy dependent upon life of another terminates. 704.40(1)
(1) Any person occupying premises as tenant of the owner of a life estate or any person owning an estate for the life of another, upon cessation of the measuring life, is liable to the owner of the reversion or remainder for the reasonable rental value of the premises for any period the occupant remains in possession after termination of the life estate. Rental value as used in this section has the same meaning as rental value defined in
s. 704.27.
704.40(2)
(2) The owner of the reversion or remainder can remove the occupant in any lawful manner including eviction proceedings under
ch. 799 as follows:
704.40(2)(a)
(a) If the occupant has no lease for a term, upon terminating the occupant's tenancy by giving notice as provided in
s. 704.19;
704.40(2)(b)
(b) If the occupant is in possession under a lease for a term, upon termination of the lease or one year after written notice to the occupant given in the manner provided by
s. 704.21 whichever occurs first, except that a farm tenancy can be terminated only at the end of a rental year.
704.40(3)
(3) The occupant must promptly after written demand give information as to the nature of the occupant's possession. If the occupant fails to do so, the reversioner or remainderman may treat the occupant as a tenant from month-to-month.
704.40 History
History: 1979 c. 32 s.
92 (16);
1993 a. 486.
704.45
704.45
Retaliatory conduct in residential tenancies prohibited. 704.45(1)(1) Except as provided in
sub. (2), a landlord in a residential tenancy may not increase rent, decrease services, bring an action for possession of the premises, refuse to renew a lease or threaten any of the foregoing, if there is a preponderance of evidence that the action or inaction would not occur but for the landlord's retaliation against the tenant for doing any of the following:
704.45(1)(a)
(a) Making a good faith complaint about a defect in the premises to an elected public official or a local housing code enforcement agency.
704.45(1)(b)
(b) Complaining to the landlord about a violation of
s. 704.07 or a local housing code applicable to the premises.
704.45(1)(c)
(c) Exercising a legal right relating to residential tenancies.
704.45(2)
(2) Notwithstanding
sub. (1), a landlord may bring an action for possession of the premises if the tenant has not paid rent other than a rent increase prohibited by
sub. (1).
704.45(3)
(3) This section does not apply to complaints made about defects in the premises caused by the negligence or improper use of the tenant who is affected by the action or inaction.
704.45 History
History: 1981 c. 286.
704.90
704.90
Self-service storage facilities. 704.90(1)(a)
(a) "Default" means the lessee fails to pay rent or other charges due under a rental agreement for a period of 7 consecutive days after the due date under the rental agreement.
704.90(1)(am)
(am) "Last-known address" means the address provided by a lessee to an operator in the most recent rental agreement between the lessee and the operator or the address provided by a lessee to an operator in a written notice of a change of address, whichever address is provided later.
704.90(1)(b)
(b) "Leased space" means space located within a self-service storage facility that a lessee is entitled to use for the storage of personal property on a self-service basis pursuant to a rental agreement and that is not rented or provided to the lessee in conjunction with property for residential use by the lessee.
704.90(1)(c)
(c) "Lessee" means a person entitled to the use of a leased space, to the exclusion of others, under a rental agreement, or the person's sublessee, successor or assign.
704.90(1)(d)
(d) "Operator" means the owner, lessor or sublessor of a self-service storage facility, an agent of any of them or any other person who is authorized by the owner, lessor or sublessor to manage the self-service storage facility or to receive rent from a lessee under a rental agreement.
704.90(1)(e)
(e) "Personal property" means movable property not affixed to land, including goods, wares, merchandise, motor vehicles, watercraft, household items and furnishings.
704.90(1)(f)
(f) "Rental agreement" means a lease or agreement between a lessee and an operator that establishes or modifies any provisions concerning the use of a leased space, including who is entitled to the use of the leased space.
704.90(1)(g)
(g) "Self-service storage facility" means real property containing leased spaces but does not include a warehouse or other facility if the operator of the warehouse or facility issues a warehouse receipt, bill of lading or other document of title for personal property stored in the leased spaces.
704.90(2)(a)(a) An operator may not knowingly permit a leased space to be used for residential purposes.
704.90(2)(b)
(b) A lessee may not use a leased space for residential purposes.
704.90(2m)
(2m) Written rental agreement. Every rental agreement shall be in writing and shall contain a provision allowing the lessee to specify the name and last-known address of a person who, in addition to the lessee, the operator is required to notify under
sub. (5) (b) 1.
704.90(3)
(3) Lien and notice in rental agreement. 704.90(3)(a)(a) An operator has a lien on all personal property stored in a leased space for rent and other charges related to the personal property, including expenses necessary to the preservation, removal, storage, preparation for sale and sale of the personal property. The lien attaches as of the first day the personal property is stored in the leased space and is superior to any other lien on or security interest in the personal property except for a statutory lien or a security interest that is perfected by filing prior to the first day the personal property is stored in the leased space, a security interest in a vehicle perfected under
ch. 342 or a security interest in a boat perfected under
ch. 30.
704.90(3)(b)
(b) A rental agreement shall state in boldface type that the operator has a lien on personal property stored in a leased space and that the operator may satisfy the lien by selling the personal property, as provided in this section, if the lessee defaults or fails to pay rent for the storage of personal property abandoned after the termination of the rental agreement.
704.90(4)
(4) Care and custody. Except as provided in the rental agreement and in this section, a lessee has exclusive care, custody and control of personal property stored in the lessee's leased space.
704.90(4g)
(4g) Default or failure to pay after termination. A lessee who defaults or fails to pay rent for the storage of personal property abandoned after the termination of the rental agreement is subject to the procedures and remedies in
subs. (4r) to
(9) and
(12).
704.90(4r)
(4r) Denial of access; removal and storage. 704.90(4r)(a)(a) If a lessee defaults, an operator may deny the lessee access to the personal property until the lessee redeems the personal property under
sub. (5) (a).
704.90(4r)(b)
(b) After the termination, by expiration or otherwise, of a rental agreement for the use of a leased space by a lessee, an operator may remove personal property remaining in the leased space and store the personal property at another site within or outside the self-service storage facility or the operator may continue to store the personal property in the leased space, and the operator may deny the former lessee access to the personal property until the lessee redeems the personal property under
sub. (5) (a). The operator may charge a reasonable rent for storage of the personal property, whether at another site or in the leased space. A former lessee who fails to pay the rent is subject to all procedures and remedies set forth in this section for default.
704.90(5)
(5) Redemption and notice of opportunity to redeem. 704.90(5)(a)(a) At any time prior to sale under
sub. (6), a lessee may redeem personal property by paying the operator any rent and other charges due. Upon receipt of such payment, the operator shall return the personal property, and thereafter the operator shall have no liability to any person with respect to such personal property.
704.90(5)(b)
(b) An operator may not sell personal property under
sub. (6) unless the operator first delivers the following 2 notices:
704.90(5)(b)1.
1. A first notice sent by regular mail to the last-known address of the lessee and the person, if any, specified in the rental agreement under
sub. (2m) containing all of the following:
704.90(5)(b)1.a.
a. Notification that the lessee is in default or has failed to pay rent for the storage of personal property abandoned after the termination of the rental agreement or both.
704.90(5)(b)1.b.
b. A brief and general description of the personal property subject to the lien that is reasonably adequate to permit the lessee to identify it, except that any container including, but not limited to, a trunk, valise or box that is locked, fastened, sealed or tied in a manner which deters immediate access to its contents may be described as such without describing its contents.
704.90(5)(b)1.c.
c. A notice of denial of access to the personal property if such denial is permitted under the terms of the rental agreement or under
sub. (4r).
704.90(5)(b)1.d.
d. The name, street address and telephone number of the operator whom the lessee may contact to redeem the personal property by paying the rent and other charges due.
704.90(5)(b)2.
2. A 2nd notice sent by certified mail to the last-known address of the lessee containing all of the following:
704.90(5)(b)2.a.
a. A statement that the operator has a lien on personal property stored in a leased space.
704.90(5)(b)2.ag.
ag. A brief and general description of the personal property subject to the lien that is reasonably adequate to permit the lessee to identify it, except that any container including, but not limited to, a trunk, valise or box that is locked, fastened, sealed or tied in a manner which deters immediate access to its contents may be described as such without describing its contents.
704.90(5)(b)2.am.
am. A notice of denial of access to the personal property if such denial is permitted under the terms of the rental agreement or under
sub. (4r).
704.90(5)(b)2.b.
b. An itemized statement of the operator's claim for rent and other charges due as of the date of the notice and of additional rent and other charges that will become due prior to sale and the dates when they will become due.
704.90(5)(b)2.c.
c. A demand for payment of the rent and other charges due within a time period not sooner than 14 days after the date of the notice.
704.90(5)(b)2.d.
d. A statement that unless the rent and other charges are paid within the time period under
subd. 2. c., the personal property will be sold, a specification of the date, time and place of sale and a statement that if the property is sold the operator shall apply the proceeds of the sale first to satisfy the lien and shall report and deliver any balance to the state treasurer as provided under
ch. 177.
704.90(5)(b)2.e.
e. The name, street address and telephone number of the operator whom the lessee may contact to redeem the personal property by paying the rent and other charges due.
704.90(6)
(6) Sale, notice of sale and proceeds of sale. 704.90(6)(a)(a) After the expiration of the time period given in the 2nd notice under
sub. (5) (b) 2. c., an operator may sell personal property that was stored in a lessee's leased space to satisfy the lien under
sub. (3) (a) in the manner set forth in
pars. (b) and
(c) if all of the following conditions are met:
704.90(6)(a)4.
4. An advertisement of the sale is published once a week for 2 consecutive weeks in a newspaper of general circulation where the self-service storage facility is located.
704.90(6)(a)5.
5. The advertisement under
subd. 4. contains all of the following:
704.90(6)(a)5.a.
a. A brief and general description of the personal property reasonably adequate to permit its identification, as provided in the notices under
sub. (5) (b).
704.90(6)(a)5.b.
b. The address of the self-service storage facility, the number, if any, of the space where the personal property is located and the name of the lessee.
704.90(6)(a)6.
6. The sale takes place not sooner than 15 days after the first publication under
subd. 4.
704.90(6)(a)7.
7. The sale is conducted in a commercially reasonable manner and conforms to the terms of the notices under
sub. (5) (b).
704.90(6)(a)8.
8. The sale is held at the self-service storage facility or at the nearest suitable place to the place where the personal property is stored.
704.90(6)(b)
(b) The operator shall apply the proceeds of the sale first to satisfy the lien under
sub. (3) (a). The operator shall report and deliver any balance to the state treasurer as provided under
ch. 177.
704.90(6)(c)
(c) A purchaser in good faith of personal property sold takes the personal property free and clear of any rights of any person against whom the lien under
sub. (3) (a) was valid and any rights of any other lienholder, regardless of any noncompliance with the requirements of this section by any person.
704.90(7)
(7) Notice; presumption of delivery. Notice by mailing under
sub. (5) (b) is presumed delivered if deposited with the U.S. postal service, properly addressed to the last-known address of the lessee or person specified in the rental agreement under
sub. (2m) with postage prepaid.
704.90(8)
(8) Supplemental nature of section. This section does not impair or affect in any way the right of parties to create liens by special contract or agreement, nor does it impair or affect any lien not arising under this section, whether the other lien is statutory or of any other nature.
704.90(9)
(9) Rules. The department of agriculture, trade and consumer protection may promulgate rules necessary to carry out the purposes of this section.
